Adapting to Arbitrators

May 11, 2015

The Minnesota State Senate, I learned from a recent NPR story, prohibits eye contact. Incredibly, the legislative body has a rule stating that all comments must be addressed to the Senate President, and that rule is interpreted to mean that senators cannot look their fellow senators in the eye while speaking. The reason for this bit of absurdity is, apparently, that the lawmakers believe direct eye contact leads to hostility and a loss of decorum. According to former majority leader, Senator Tom Bakk, "Going through the president forces people to listen rather than watch facial expressions and look at each other, which sometimes I think kind of inflames some of the rhetoric going back and forth."

The problem with that reasoning is that it assumes there is a simple and deterministic meaning to eye contact, but there isn't. Direct eye contact can convey hostility and disrespect, but it can also convey the opposite. The difference lies in what the rest of the face is doing, and also in the situational context. The NPR story quotes a dog behavior expert, Clive Wynne of Arizona State University: "A dog that's wagging its tail happily while it looks another dog in the eye is maybe communicating something friendly," Wynne explains, "whereas a dog that growls and has its hackles raised in a very tense body posture — the eye contact may just intensify that threat." Among humans, an ability to give eye contact doesn't necessarily increase persuasion, but it all depends on the context. In the complicated context of American litigation, eye contact plays a number of very important roles: It connects, communicates, and builds credibility. So what Wynne says to the Minnesota Senate applies as well in court: "Encourage positive, friendly eye contact, and discourage more aggressive, intimidating forms of eye contact." In this post, I'll look at a few different roles for attorney and witness eye contact.

January 21, 2013

There is a body lying on the pavement. It is still twitching a bit, but fading fast. "This was no accident," says the hard-boiled detective, "this was an attempt at premeditated murder...and it just might succeed." If instead of "body" we're referring to the American civil jury, and instead of "hard-boiled detective" we're referring to a new article in the Yale Law Journal, then the scenario is roughly the same. The analysis, from Yale legal history professor John H. Langbein (2012), notes the dramatic decline in civil trials (now down to two percent of all case conclusions in federal courts and less than one percent in state courts), and ties that trend to a movement from a pleadings-based system in which facts were resolved in trial, to a discovery-based system in which facts are resolved not before trial, but largely without trial. This, Langbein argues, is a consequence of the 1938 Federal Rules of Civil Procedure and the civil jury is fading by design, if not by intent, because the reforms have largely worked. In other words, the American jury didn't fall, it was pushed.

While these rumors of the civil jury's impending death may not be greatly exaggerated, they may yet be premature. This is particularly true if we are focusing on the role of popular judgement at a level that is somewhat broader than the formal jury as we have historically conceived it. By expanding our focus a bit in order to account for the potential jury, the expanding use of the mock jury, as well as potential new models such as California's expedited jury, there is still the chance that the legal vox populi might live to play a role in the future.

September 20, 2012

Imagine a typical employment discrimination case, subject to all of the ambiguities of human motivation. To the plaintiff, it is a story of good if not exceptional work performance cut short by a decision to terminate based on race, gender, age or disability. To the defendant, it is a story of enforcing job expectations broadly on all employees, including those who happen to be in protected categories. Given that a biased motive is rarely declared, it generally needs to be inferred from the circumstances. That act of inferring can invoke many of the subtleties of the fact finder's world-view, attitudes, and bias.

But the question is, who decides? The recent history of employment litigation is a history of shifting fact finders. In the early days of Title VII, it was judges. Then after the Civil Rights Act of 1991, the door was open for employment plaintiffs to seek verdicts and damages from juries. More recently, as employers have moved to mandatory arbitration clauses, the dominant fact finder has changed yet again. Some dimension of choice remains, particularly for defendants, and that choice is important. In this post, I take a look at the question from the defendant's point of view to share some of what we know on how judges, arbitrators, and juries compare in the context of employment cases.

September 12, 2011

Judges, arbitrators, mediators: legally trained and neutral minds, without the juror's baggage of selective perception, predisposition, and bias, right? Not really. In the previous two posts on motivated thinking and instrumental argument, I wrote that an audience's reasoning and advocacy is driven by emotions and not just by logic. While a jury's decision making and deliberations might be the acts most obviously implicated in these findings, the mental processes are by no means unique to juries. The experience of going to law school and occupying a specific legal role does tend to refine legal understanding and decision making quality, but that doesn't provide a blanket exemption to human psychology and communications.

Indeed, the experienced legal practitioner is more likely than the novice to rely on heuristics, those rules and routines that tend to simplify and systematize decision-making. In some ways, that is what "expertise" means: an expanded reliance on heuristics. Rather than making non-jury decision makers neutral and above the influence of human factors, these very heuristics serve to ingrain a decision maker's habits and preferences. This post takes a look at some of the research on bias in non-jury legal audiences and shares some advice on addressing those factors.

April 04, 2011

Lockout. If you’re a sports fan or even a casual news surfer, you cannot escape word that America’s favorite sport – professional football – is in jeopardy. Players and owners are at odds and this Wednesday, the National Football League Players Association will face off against the NFL and its owners in an injunction hearing before a Minneapolis Judge (for some flavor click here to see the NFLPA’s brief filed last week). There is a real chance the 2011 NFL season will be disrupted. A few lawsuits (including one by former NFL players) have already been filed and there is talk of a similar dispute playing out later this year between professional basketball players and the National Basketball Association.

At least we have baseball, right? Well, yes, but keep in mind that 119 Major League Baseball players went through salary arbitration for the 2011 season – again in dispute over, among other things, how much money players make and owners share. Even college sports are in the courtroom. It is a reality that judges and arbitrators have an increasingly important role in the future of sports. So it got me thinking about our experience with judges and arbitrators and how advocates must address them to be successful.